The industry of movie filtering, if it can be called an industry, has had many twists and turns these last two decades. Arguments for and against filtering have played out in courts, on social media and in hundreds, if not thousands, of meetings I have personally attended.
Misunderstandings abound. Questions around the morality and the legality of filtering get meshed together. Resulting answers often seem inconsistent, or at least head-scratching.
Amid these discussions, there are a few areas of understanding I would like to share:
There are illegal and legal ways to filter movies.
It goes back to the U.S. Constitution. While our Founding Fathers could have scarcely imagined the various types of content that would be produced in the 21st century, or the many ways that content would be distributed and transmitted into our homes, the principles contained in the intellectual property paragraph of the Constitution still hold true. Specifically, Congress shall have the power of “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The economic incentive of securing exclusive rights for intellectual property holders is profound. The positive impact of this incentive, and its effect over the last 200 years, cannot be overstated.
Authors (and content creators in general) are afforded the ability to maximize the value of their content in whatever ways they see fit. However, given this exclusive right, is there legal room for filtering?
At the heart of copyright law is the protection against the making of unauthorized copies. This protection fits squarely within the constitutional goal of “securing” to copyright holders their “exclusive right” to the embodiments of their content. Filtering of movies must still be done within the bounds of these exclusive rights.
Legal filtering works with authorized copies.
The copyright holder has the right to authorize the making of copies. This is true whether copies are being made onto DVD and Blu-ray discs or copies are being made onto a streaming server that can stream the movie into your home.
For example, when a company like Amazon streams a movie to your home, it streams that content from a copy on Amazon’s video servers. Amazon has licensed this movie and as part of its agreement has obtained authorization to have a master copy of the movie on its servers.
Filtering needs to work directly with these authorized copies. This is clearly stated in the Family Movie Act of 2005. For example, skipping and muting of content can occur while a movie is being streamed to your home, as long as the movie is coming from a copy that is authorized for home streaming.
An edited copy of a movie is when the editing is done permanently. For example, a studio may release a copy of a movie that has additional or different scenes included in the copy. Or, in the case of broadcast television, there may be an edited copy of the movie with scenes trimmed for broadcast distribution. The TV station transmits this edited version from the edited copy of the movie.
Filtering is different. With filtering, an edited copy of the movie is never made. The filtering happens on the fly, while the movie is playing. This is similar to what happens when someone uses a remote control to skip or mute content while the movie is playing in their home.
The distinction between edited copies and filtering is important, especially when understanding the contracts between the copyright holder (usually the studios) and the director.
As part of their contract, directors often have what is called “final cut” authority. This basically states that the director of a movie has the final say over how the scenes in a movie are cut together. These contractual agreements also detail the director’s involvement when an edited copy is made for broadcast television or for airlines.
The studios have acknowledged the distinction between edited copies and filtering, confirming that the basic agreement between the studios and the directors does not prohibit filtering. Specifically, the studios have stated that the “Directors Guild of America (DGA) Basic Agreement simply does not speak to filtering, much less prohibit it” (Dec. 19, 2016, studio legal statement on filtering).
In summary, in the Constitution the word "secure" is found only twice: in the intellectual property clause, "securing for limited times to authors and inventors exclusive right to their respective writings and discoveries," and in the preamble, to "secure the blessings of liberty to ourselves and our posterity."
Existing law, as supported by the Constitution, is respectful of both copyright and filtering. It gives us all security in knowing we can enjoy high-quality entertainment and have the liberty to filter movies for ourselves and our posterity, enjoying movies together as a family.
Matthew Jarman is CEO and co-founder of ClearPlay.